Paz v. Holder ( 2013 )

12-2183
Paz v. Holder
BIA
Verrillo, IJ
A094 028 449
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of March, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOSÉ A. CABRANES,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 MARLOS PAZ,
15
16 Petitioner,
17
18 v. 12-2183
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Elyssa N. Williams, Formica
27 Williams, P.C., New Haven, CT.
28
29 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
30 Assistant Attorney General; Holly M.
1 Smith, Senior Litigation Counsel;
2 Edward C. Durant, Attorney, Office
3 of Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Marlos Paz, a native and citizen of Nicaragua, seeks
12 review of an April 30, 2012 order of the BIA denying his
13 request for a remand and affirming the April 6, 2010
14 decision of Immigration Judge (“IJ”) Philip Verrillo,
15 finding him removable and ineligible for cancellation of
16 removal. In re Marlos Paz, No. A094 028 449 (B.I.A. Apr.
17 30, 2012), aff’g No. A094 028 449 (Immig. Ct. Hartford Apr.
18 6, 2010). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as supplemented and modified by the BIA.
22 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
23 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271
24 (2d Cir. 2005). To demonstrate eligibility for cancellation
25 of removal, an alien who is not a lawful permanent resident
26 must establish, in relevant part, that his “removal would
2
1 result in exceptional and extremely unusual hardship to
2 [his] spouse, parent, or child, who is a citizen of the
3 United States or an alien lawfully admitted for permanent
4 residence.” 8 U.S.C. § 1229b(b)(1)(D). The agency
5 determined that Paz’s removal would have no such impact.
6 Paz has shown no error in that determination.
7 Paz argues that the agency mischaracterized the
8 evidence by disregarding or minimizing the severity of his
9 elder son’s medical condition. Our jurisdiction to review
10 this discretionary determination is limited, see 8 U.S.C.
11 § 1252(a)(2)(B), and although Paz’s argument can be
12 construed as a question of law, see 8 U.S.C.
13 § 1252(a)(2)(D); Mendez v. Holder, 566 F.3d 316, 322-23 (2d
14 Cir. 2009) (per curiam); Ilyas Khan v. Gonzales, 495 F.3d
15 31, 35 (2d Cir. 2007), no evidence as to the severity of the
16 condition was presented to the agency.
17 Paz submitted to the IJ a sheet with a list of his
18 sons’ diagnoses, without any information about his elder
19 son’s diagnosis, its seriousness, or what treatment or
20 medications were prescribed. Paz offered no context for the
21 medical records documenting his son’s appointments between
22 1998 and 2008, and his counsel elicited only the most basic
3
1 testimony from Paz, who could not give medical testimony in
2 any event. It was Paz’s burden to show that his removal
3 would cause his child’s exceptional and extremely unusual
4 hardship. 8 U.S.C. § 1229a(c)(4)(A)(i)-(ii).
5 Paz also argues that the IJ and the BIA failed to
6 interpret his facts in light of In re Gonzalez Recinas, 23
7 I&N Dec. 467 (BIA 2002), and thus used the wrong legal
8 standard for exceptional and extremely unusual hardship.
9 This argument raises a question of law, but it is without
10 merit. See Ilyas Khan, 495 F.3d at 35. In Gonzalez
11 Recinas, the BIA considered such factors as the health of
12 the qualifying family members, ability of the alien to
13 obtain employment in the home country, ability to achieve
14 immigration status another way, and family and financial
15 assets to ease a transition. Gonzalez Recinas, 23 I&N Dec.
16 at 469-71. In this case, both the IJ and the BIA cited
17 Gonzalez Recinas in their decisions, and considered the same
18 factors. The correct legal standard was applied.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of removal
21 that the Court previously granted in this petition is VACATED,
22 and any pending motion for a stay of removal in this petition
4
1 is DISMISSED as moot. Any pending request for oral argument in
2 this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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